90 P. 561 | Cal. Ct. App. | 1907
Appellant was tried on an information charging him with murder, and he was convicted of manslaughter. He has appealed from the judgment and order denying his motion for a new trial. The assignments of errors relate to certain instructions given and refused and to the action of the trial court in overruling an objection to a hypothetical question addressed to one of the witnesses for the people. We will notice in the order presented in his brief all of the points upon which appellant relies for a reversal of the judgment.
Dr. Stevenson, a medical expert for the people, was asked this question: "Suppose a man weighing 130 pounds or thereabouts was struck with sufficient force by a man weighing 180, 190 or 200 pounds, to knock him down twice within a short period of time, the first blow being succeeded by a struggle, and during that struggle the smaller man was choked for a period of half a minute, at first lightly and then gradually increasing it until he let go his hold upon a revolver; after the second blow he had some difficulty in arising, but got up, walked a space of fifteen or twenty feet, or ten feet; then walked a space of thirty or forty or fifty feet without staggering; his muscles co-ordinating, and during that period, talks coherently. What can you say as to the mental condition of such smaller man?" Counsel for defendant made this objection: "I object to the question as not founded upon the facts as proven by the prosecution in this case." Thereupon, in response to the question by the court, "Wherein is it defective or wherein does it not conform to the facts?" counsel answered: "In this, that the witness Bridge called by the prosecution testified that when the defendant first got up, he staggered to the bar; that after he got the pistol he walked in a stooping position, that he gradually braced up and walked a little better, so it is not founded upon the testimony." "Very well," said the district attorney, "after he got the pistol there was a little swaying, but he quickly gathered himself and walked naturally, without staggering *429 or swaying, all of his muscles apparently co-ordinating?" Counsel for appellant again objected "on the same grounds; on the further ground that it calls for an opinion on a hypothetical question not warranted by law." The objection was overruled and an exception taken.
There is evidence in the record of all the facts embodied in the foregoing question, and as the objection went only to that point the ruling of the court was obviously correct. It was not necessary for the question to embrace all the evidence in the case. Indeed, if that were the rule, hypothetical questions would generally be impossible on account of the conflict usually created by the testimony.
The rule is clearly stated in People v. Hill,
But appellant contends that facts and not opinions must be assumed in the question (Rogers on Expert Testimony, sec. 30) and that the objection should have been sustained because the words "co-ordinating" and "coherently" presuppose the mental condition which it is the exclusive province of the jury to determine. Granting that these words are objectionable as involving a conclusion, it is difficult to see how their use could have prejudiced appellant. But a complete answer to the contention is that no such objection was made in the court below as is presented here. The additional objection that it was "a hypothetical question not warranted by law" raises no issue and amounts to nothing.
In the case of People v. Mahoney,
Here it could be demonstrated that the objectionable words — assuming them to be objectionable — could not have prejudiced the defendant. But we uphold the order of the court upon the ground that, in view of the particular objection made, the ruling was undoubtedly sound.
It is urged that the court erred in giving the following instruction: "You are instructed that each and every fact and circumstance relied upon by the prosecution to establish the guilt of the defendant must be proved by the evidence beyond all reasonable doubt, and if the jury are not satisfied beyond all reasonable doubts that each such fact and circumstance has been proven it is your duty to find a verdict of not guilty." The suggestion made in reference to this instruction seems exceedingly hypercritical and destitute of any merit. It would be unreasonable to hold that to the average mind the language used could mean anything more or less than that the burden is upon the prosecution to establish beyond a reasonable doubt the crime charged against the defendant, and that if any fact or circumstance necessary to constitute such crime is not so established the defendant must be acquitted. The only other inference likely to be drawn is that the burden is upon the people to prove all the facts and circumstances which the prosecution has introduced in evidence, whether material or not, to establish the crime. This, it is needless to say, is stating the law more favorably to defendant than he has a right to demand. But if we concede that the instruction, standing apart, might be deemed somewhat obscure, no such imputation can be made when we consider it in connection with the other instructions given by the court wherein the people's duty to prove beyond a reasonable doubt all the elements of the crime charged was clearly set forth.
Appellant also assails the following portion of one of the instructions given: "This presumption of innocence attaches to every stage of the case and to every fact essential to a conviction and remains with the defendant throughout the trial until the contrary is established by proof beyond a reasonable doubt." The contention is made that the presumption of innocence remains with the defendant until a verdict is rendered and not simply "until the contrary is established by proof beyond a reasonable doubt." *432
In People v. Arlington,
The only other point made is that the court erred in refusing to give all of a certain instruction requested by defendant. The part eliminated reads as follows: "And you are further instructed that the law presumes that if the defendant was an officer and acting as such at the time of the alleged homicide that he was doing his duty." Appellant seeks to justify his contention by citing subdivision 15 of section 1963, Code of Civil Procedure, which provides that it is presumed "that official duty has been regularly performed"; but the proposed instruction goes far beyond the presumption of the regular performance of official duty. It conveys the suggestion that if the defendant was an officer he had a right to kill the deceased. Peace officers are justly invested, under our law, with considerable discretion and power, but it could hardly be contended seriously that a homicide committed by one is presumed to be justifiable simply because of his official position. At best the instruction was obscure and misleading. As far as it inferentially contained a correct legal principle it was covered by instructions given. Besides, it does not appear that it was requested by appellant. *433
We have examined with anxious care all the suggestions made and authorities cited by counsel, but we find in the record no error whatever. The judgment and order are affirmed.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 17, 1907.